Appeal from the District Court of Laramie County, The Honorable Edward L. Grant, Judge.
The opinion of the court was delivered by: Voigt, Chief Justice
Before VOIGT, C.J., and GOLDEN, HILL, KITE, and BURKE, JJ.
VOIGT, C.J., delivers the opinion of the Court; KITE, J., files a specially concurring opinion, in which HILL, J., joins.
[¶1] Upon remand from this Court, the appellant was again convicted of three counts of second-degree sexual assault. He raises in this second appeal issues of his constitutional right to adequate notice of the charges being brought against him, and of the admissibility of uncharged misconduct evidence. We affirm.
[¶2] 1. Was the appellant adequately advised of the charges being brought against him?
2. Did the district court abuse its discretion by admitting certain uncharged misconduct evidence?
[¶3] The facts of this case as previously recited by the Court can be found at Heywood v. State, 2007 WY 149, ¶¶ 3-5, 170 P.3d 1227, 1229 (Wyo. 2007). Briefly stated, the appellant's convictions were reversed because the information, the instructions, and the verdict form did not adequately identify the particular crimes with which the appellant was charged.
Was the appellant adequately advised of the charges being brought against him?
[¶4] An accused has a constitutional right to notice of the charges against him to allow him a fair opportunity to defend against the charges. United States Constitution, Sixth Amendment; Wyo. Const. art. 1 § 10. See also, W.R.Cr.P. 3; Derksen v. State, 845 P.2d 1383, 1388-89 (Wyo. 1993). Because the right to notice of criminal charges is of constitutional magnitude and the determination on the adequacy of the notice is a question of law, we review the issue de novo. See, e.g., Pena v. State, 2004 WY 115, ¶ 7, 98 P.3d 857, 862 (Wyo. 2004).
Barker v. State, 2006 WY 104, ¶ 14, 141 P.3d 106, 112 (Wyo. 2006). We referenced these principles in the opinion reversing the appellant's conviction after the first go-round in this case, but we found them to have been waived because they were not raised below. Heywood, 2007 WY 149, ¶ 22, 170 P.3d at 1233. We reversed, however, on the related issue of the failure of the information, the instructions, and the verdict form to distinguish for the jury the separate crimes upon which it was to deliberate. Id. at ¶ 33, 170 P.3d at 1236.
[¶5] Prior to the second trial, the appellant filed a Motion for a Bill of Particulars as to All Counts of the Information. A responsive Bill of Particulars was filed by the State about a week later. The function of a bill of particulars is ―to make more specific the general allegations in the information to enable the defendant to prepare his defense and avoid being surprised at the trial.‖ Booth v. State, 517 P.2d 1034, 1036 (Wyo. 1974). The appellant objected to the Bill of Particulars on the ground that it did not ...